-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WBn2dFstVeQDIUE61D+MP9TTayhfI2C6pcEHZe3NtfFsimNiEYDypLHuDa88dM0z rR3lvQC87fWS96tr8qAkBg== 0001005477-97-001798.txt : 19970704 0001005477-97-001798.hdr.sgml : 19970704 ACCESSION NUMBER: 0001005477-97-001798 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970703 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: STRATASYS INC CENTRAL INDEX KEY: 0000915735 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 363658792 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-45905 FILM NUMBER: 97636464 BUSINESS ADDRESS: STREET 1: 14950 MARTIN DRIVE CITY: EDEN PRAIRIE STATE: MN ZIP: 55344 BUSINESS PHONE: 6129373000 MAIL ADDRESS: STREET 1: 14950 MARTIN DRIVE CITY: EDEN PRAI STATE: MN ZIP: 55344 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: INTERNATIONAL BUSINESS MACHINES CORP CENTRAL INDEX KEY: 0000051143 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER & OFFICE EQUIPMENT [3570] IRS NUMBER: 130871985 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE OLD ORCHARD RD CITY: ARMONK STATE: NY ZIP: 10504 BUSINESS PHONE: 9147651900 MAIL ADDRESS: STREET 1: ONE OLD ORCHARD RD CITY: ARMONK STATE: NY ZIP: 10504 SC 13D/A 1 AMENDMENT NO. 1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------- SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 1)* Stratasys, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $.01 Par Value - -------------------------------------------------------------------------------- (Title of Class of Securities) 862685104 - -------------------------------------------------------------------------------- (CUSIP Number) Donald D. Westfall Associate General Counsel Old Orchard Road (1C63), Armonk, NY 10504 (914) 765-4478 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 21, 1997 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 862685104 Page ______ of ______ Pages - -------------------------------------------------------------------------------- 1 Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person International Business Machines Corporation 13-0871985 - -------------------------------------------------------------------------------- 2 Check the Appropriate Box If a Member of a Group* a. |_| b. |_| - -------------------------------------------------------------------------------- 3 SEC Use Only - -------------------------------------------------------------------------------- 4 Source of Funds* N/A - -------------------------------------------------------------------------------- 5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e) |_| - -------------------------------------------------------------------------------- 6 Citizenship or Place of Organization New York - -------------------------------------------------------------------------------- 7 Sole Voting Power Number of Shares 10,000 Shares Beneficially -------------------------------------------------------- Owned By 8 Shared Voting Power Each Reporting Person -------------------------------------------------------- With 9 Sole Dispositive Power 10,000 Shares -------------------------------------------------------- 10 Shared Dispositive Power - -------------------------------------------------------------------------------- 11 Aggregate Amount Beneficially Owned by Each Reporting Person 10,000 Shares - -------------------------------------------------------------------------------- 12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |_| - -------------------------------------------------------------------------------- 13 Percent of Class Represented By Amount in Row (11) Less than 1% - -------------------------------------------------------------------------------- 14 Type of Reporting Person* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! 2 of 7 Item 1. Security and Issuer This statement relates to the common stock, par value $.01 per share (the "Common Stock"), of Stratasys, Inc. (the "Company"), a Delaware corporation with its principal executive offices at 14950 Martin Drive, Eden Prairie, Minnesota 55344. Item 2. Identity and Background International Business Machines Corporation ("IBM") is a New York corporation with its principal offices and business at Old Orchard Road, Armonk, New York 10504. IBM develops, manufactures and sells advanced information processing products, including computers and microelectronic technology, software, networking systems and information technology-related services. The attached Attachment I is a list of the directors and executive officers of IBM which contains the following information with respect to each such person: (a) name; (b) business address; (c) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted; and (d) citizenship. During the last five years, neither IBM nor, to the best of IBM's knowledge, any person named in Schedule I has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result Page 2 of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violations with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration Not applicable. This Amendment No. 1 to Schedule 13D is being filed by IBM to reflect certain dispositions of the Common Stock of Stratasys. Item 4. Purpose of the Transaction. Not applicable. This Amendment No. 1 to Schedule 13D is being filed to reflect certain dispositions of the Common Stock of Stratasys. Item 5. Interest in Securities of the Company The only shares of the Company's Common Stock that IBM beneficially owns are 10,000 shares of Common Stock, which shares represent less than 1% of the outstanding Common Stock. IBM possesses the sole power to vote or direct the vote and to dispose of or direct the disposition of all shares of Common Stock beneficially owned by it, subject to its obligations described in Item 6. Except as described above, neither IBM nor, to IBM's knowledge, any person named in Schedule 1 beneficially owns any shares of Common Stock or has effected any transactions in Common Stock during the past 60 days. Page 3 Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Company In connection with the original sale by Stratasys of the shares to IBM, the Company and IBM entered into a Representations and Registration Rights Agreement dated as of January 1, 1995 (the "Agreement"), which is annexed as an Exhibit. Pursuant to the Agreement, IBM has certain rights to cause the Company to register such shares for resale under the Securities Act of 1933. IBM's registration rights may be exercised after January 1, 1998, or after January 1, 1998, or after January 1, 1997, in connection with a registration otherwise filed by the Company, and such rights are subject to certain conditions and limitations described in the Agreement. The Agreement also provides that prior to selling or otherwise disposing of any of such shares (except (i) pursuant to a registration statement under the Securities Act of 1993, (ii) in the case of a transfer to an IBM subsidiary, (iii) in connection with a merger or consolidation of the Company, (iv) in response to an offer for the Company's common stock which is available to substantially all the holders thereof or (v) to a transferee approved by the Company) IBM is required to give the Company the opportunity to purchase the shares IBM desires to sell at the then current market price. Item 7. Material to be Filed as Exhibits Exhibit 2. Representations and Registration Rights Agreement dated as of January 1, 1995, between Stratasys, Inc. and International Business Machines Corporation. Page 4 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 17, 1997 INTERNATIONAL BUSINESS MACHINES CORPORATION by: /s/ John E. Hickey ---------------------------------------- Name: John E. Hickey Title: Vice President, Secretary and Assistant General Counsel ATTACHMENT I DIRECTORS AND EXECUTIVE OFFICERS OF INTERNATIONAL BUSINESS MACHINES CORPORATION 1. Directors and Executive Officers of IBM. The name, business address, and present principal occupation or employment of each of the directors and executive officers of IBM are set forth below. All such directors and executive officers listed below are citizens of the United States except Juergen Dormann (Germany), Lodewijk C. van Wachem (Netherlands) and John M. Thompson (Canada). Unless otherwise indicated, the principal business address of each director or executive officer is International Business Machines Corporation, Old Orchard Road, Armonk, NY 10504. Present Principal Occupation or Name, Age and Business Address Employment - ------------------------------ ---------- Louis V. Gerstner, Jr. (55) Chairman of the Board and Chief Executive Officer of IBM. Cathleen Black (53) Director of IBM since 1995. President, The Hearst Corporation Hearst Magazines, a division of The 959 Eighth Avenue Hearst Corporation. New York, NY 10019 Harold Brown (69) Director of IBM from 1972 to 1977 and Center for Strategic and International since 1981. Counselor, Center for Studies Strategic and International Studies, Suite 400 Washington, DC, and a general partner 1800 K Street, NW in Warburg, Pincus & Company. Washington, DC 20006 Juergen Dormann (57) Director of IBM since January 1996. Hoechst AG Chairman of the Management Board, Building F821 Hoechst AG. Frankfurt G65926 Germany ATTACHMENT 1 Nannerl O. Keohane (56) Director of IBM since 1986. President Office of the President and professor of political science Duke University at Duke University. 207 Allen Building Box 90001 Durham, NC 27708-0001 Charles F. Knight (61) Director of IBM since 1993. Chairman, Emerson Electric Co. CEO and President, Emerson Electric 8000 West Florissant Avenue Co. P.O. Box 4100 St. Louis, MO 63136-8506 Lucio A. Noto (59) Director of IBM since 1995. Chairman Mobil Corporation and Chief Executive Officer of Mobil 3225 Gallows Road Corporation. Fairfax, VA 22037 John B. Slaughter (63) Director of IBM since 1988. Office of the President President of Occidental College. Occidental College 1600 Campus Road Los Angeles, CA 90041 Alex Trotman (63) Director of IBM since 1994. Chairman Ford Motor Company and Chief Executive Officer of the American Road Ford Motor Company. Dearborn, MI 48121-1899 Lodewijk C. van Wachem (65) Director of IBM since 1992. Chairman Royal Dutch Petroleum Company of the supervisory board of Royal Dutch P.O. Box 162 Petroleum Company. 2501 AN The Hague Netherlands Charles M. Vest (55) Director of IBM since 1994. President President's Office and professor of mechanical Massachusetts Institute of Technology engineering at Massachusetts Institute Room 3-208 of Technology. 77 Massachusetts Avenue Cambridge, MA 02139 ATTACHMENT I J. Thomas Bouchard (56) Senior Vice President, Human Resources, IBM Nicholas M. Donofrio (51) Senior Vice President and Group Executive, Servers, IBM J. Bruce Harreld (46) Senior Vice President, Strategy, IBM Paul M. Horn (50) Senior Vice President, Research, IBM Ned C. Lautenbach (53) Senior Vice President & Group Executive Sales and Distribution Group, IBM Lawrence R. Ricciardi (56) Senior Vice President & General Counsel, IBM Robert M. Stephenson (59) Senior Vice President & Group Executive, Personal Systems and Technology, IBM G. Richard Thoman (52) Senior Vice President & Chief Financial Officer, IBM John M. Thompson (54) Senior Vice President & Group Executive Software Group, IBM Dennie M. Welsh (54) Senior Vice President & Group Executive, IBM Global Services John E. Hickey (53) Vice President, Assistant General Counsel and Secretary, IBM John R. Joyce (43) Vice President & Controller, IBM Jeffrey D. Serkes (38) Vice President & Treasurer, IBM EXHIBIT INDEX Page on Which Number Document Exhibit Appears ------ -------- --------------- 1. Evidence of representative's authority to sign on behalf of IBM: Article VI Section 1 and Article V Section 11 of the Bylaws of IBM, as amended through June 28, 1994 2. Representations and Registration Rights Agreement dated as of January 1, 1995 between Stratasys, Inc. and International Business Machines Corporation. 3. Schedule 13D dated January 10, 1995, to which current Amendment No. 1 relates. EX-1 2 BY-LAWS BY-LAWS of INTERNATIONAL BUSINESS MACHINES CORPORATION Adopted April 29, 1958 As Amended Through June 28, 1994 TABLE OF CONTENTS ARTICLE I PAGE Definitions ............................................. 1 ARTICLE II MEETINGS OF STOCKHOLDERS SEC. 1. Place of Meetings ............................. 1 SEC. 2. Annual Meetings ............................... 1 SEC. 3. Special Meetings .............................. 2 SEC. 4. Notice of Meetings ............................ 2 SEC. 5. Quorum ........................................ 2 SEC. 6. Organization .................................. 3 SEC. 7. Items of Business ............................. 3 SEC. 8. Voting ........................................ 3 SEC. 9. List of Stockholders .......................... 4 SEC. 10. Inspectors of Election ........................ 4 ARTICLE III BOARD OF DIRECTORS SEC. 1. General Powers ................................ 5 SEC. 2. Number; Qualifications; Election; Term of Office ....................................... 5 SEC. 3. Place of Meetings ............................. 5 SEC. 4. First Meeting ................................. 5 SEC. 5. Regular Meetings .............................. 5 SEC. 6. Special Meetings .............................. 5 SEC. 7. Notice of Meetings ............................ 5 SEC. 8. Quorum and Manner of Acting ................... 6 SEC. 9. Organization .................................. 6 SEC. 10. Resignations .................................. 6 SEC. 11. Vacancies ..................................... 6 SEC. 12. Retirement of Directors ....................... 6 ARTICLE VII SHARES SEC. 1. Stock Certificates ............................ 15 SEC. 2. Books of Account and Record of Stockholders ... 15 SEC. 3. Transfers of Stock ............................ 15 SEC. 4. Regulations ................................... 16 SEC. 5. Fixing of Record Date ......................... 16 SEC. 6. Lost, Destroyed or Mutilated Certificates ..... 16 SEC. 7. Inspection of Records ......................... 17 SEC. 8. Auditors ...................................... 17 ARTICLE VIII OFFICES SEC. 1. Principal Office .............................. 17 SEC. 2. Other Offices ................................. 17 ARTICLE IX Waiver of Notice ........................................ 17 ARTICLE X Fiscal Year ............................................. 18 ARTICLE XI Seal .................................................... 18 ARTICLE XII Amendments .............................................. 18 BY-LAWS OF INTERNATIONAL BUSINESS MACHINES CORPORATION ------- ARTICLE I DEFINITIONS In these By-laws, and for all purposes hereof, unless there be something in the subject or context inconsistent therewith: (a) 'Corporation' shall mean International Business Machines Corporation. (b) 'Certificate of Incorporation' shall mean the restated Certificate of Incorporation as filed on May 27, 1992, together with any and all amendments and subsequent restatements thereto. (c) 'Board' shall mean the Board of Directors of the Corporation. (d) 'stockholders' shall mean the stockholders of the Corporation. (e) 'Chairman of the Board', 'Vice-Chairman of the Board', 'Chairman of the Executive Committee', 'Chief Executive Officer,' 'Chief Financial Officer', 'Chief Accounting Officer', 'President', 'Executive Vice President', 'Senior Vice President', 'Vice President', 'Treasurer', 'Secretary', 'Controller', 'Assistant Treasurer', 'Assistant Secretary', or 'Assistant Controller', as the case may be, shall mean the person at any given time occupying the particular office with the Corporation. ARTICLE II MEETINGS OF STOCKHOLDERS SECTION 1. Place of Meetings. Meetings of the stockholders of the Corporation shall be held at such place either within or outside the State of New York as may from time to time be fixed by the Board or specified or fixed in the notice of any such meeting. SECTION 2. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the last Tuesday of April of each year, if not a legal holiday, or, if such day shall be a legal holiday, then on the next succeeding day not a legal holiday. If any annual meeting shall not be held on the day designated herein, or if the directors to be elected at such annual meeting [June 28, 1994] -1- shall not have been elected thereat or at any adjournment thereof, the Board shall forthwith call a special meeting of the stockholders for the election of directors to be held as soon thereafter as convenient and give notice thereof as provided in these By-laws in respect of the notice of an annual meeting of the stockholders. At such special meeting the stockholders may elect the directors and transact other business with the same force and effect as at an annual meeting of the stockholders duly called and held. SECTION 3. Special Meetings. Special meetings of the stockholders, unless otherwise provided by law, may be called at any time by the Chairman of the Board or by the Board. SECTION 4. Notice of Meetings. Notice of each meeting of the stockholders, annual or special, shall be in writing and given in the name of the Chairman of the Board, a Vice Chairman of the Board or the President or a Vice President or the Secretary or an Assistant Secretary. Such notice shall state the purpose or purposes for which the meeting is called and the date and hour when and the place where it is to be held. A copy thereof shall either be served personally upon, or sent by mail, postage prepaid, to all stockholders of record entitled to vote at such meeting, and all stockholders of record who, by reason of any action proposed to be taken at such meeting, would be entitled to have their stock appraised if such action were taken, not less than ten or more than fifty days before the day on which the meeting is called to be held. If mailed, such copy shall be directed to each stockholder at the address listed on the record of stockholders of the Corporation, or if the stockholder shall have filed with the Secretary a written request that notices be mailed to some other address, it shall be mailed to the address designated in such request. Nevertheless, notice of any meeting of the stockholders shall not be required to be given to any stockholder who shall waive notice thereof as hereinafter provided in Article IX of these By-laws. Except when expressly required by law, notice of any adjourned meeting of the stockholders need not be given nor shall publication of notice of any annual or special meeting thereof be required. SECTION 5. Quorum. Except as otherwise provided by law, at all meetings at the stockholders, the presence of holders of record of a majority of the outstanding shares of stock of the Corporation having voting power, in person or represented by proxy and entitled to vote thereat, shall be necessary to constitute a quorum for the transaction of business. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or represented by proxy and entitled to vote thereat, or, in the absence of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time without further notice, other than by announcement at the meeting at which such adjournment shall be taken, until a quorum shall be present thereat. At any adjourned meeting at which a quorum shall be present any business may be transacted which might have been transacted at the meeting as originally called. [June 28, 1994] -2- SECTION 6. Organization. At each meeting of the stockholders, the Chairman of the Board, or in the absence of the Chairman of the Board, the President, or in the absence of the Chairman of the Board and the President, a Vice Chairman of the Board, or if the Chairman of the Board, the President, and all Vice Chairmen of the Board shall be absent therefrom, an Executive Vice President, or if the chairman of the Board, the President, all Vice Chairmen of the Board and all Executive Vice Presidents shall be absent therefrom, a Senior Vice President shall act as chairman. The Secretary, or, if the Secretary shall be absent from such meeting or unable to act, the person (who shall be an Assistant Secretary, if any of them shall be present) whom the Chairman of such meeting shall appoint secretary of such meeting shall act as secretary of such meeting and keep the minutes thereof. SECTION 7. Items of Business. The items of business at all meetings of the stockholders shall be, insofar as applicable, as follows: -- Call to order. -- Proof of notice of meeting or of waiver thereof. -- Appointment of inspectors of election, if necessary. -- A quorum being present. -- Reports. -- Election of directors. -- Other business specified in the notice of the meeting. -- Voting. -- Adjournment Any items of business not referred to in the foregoing may be taken up at the meeting as the chairman of the meeting shall determine. The chairman of the meeting shall determine all matters relating to the efficient conduct of the meeting, including but not limited to the maintenance of order and decorum. SECTION 8. Voting. Except as otherwise provided by law, each holder of record of shares of stock of the Corporation having voting power shall be entitled at each meeting of the stockholders to one vote for every share of such stock standing in the stockholder's name on the record of stockholders of the Corporation: (a) on the date fixed pursuant to the provisions of Section 5 of Article VII of these By-laws as the record date for the determination of the stockholders who shall be entitled to vote at such meeting, or [June 28, 1994] -3- (b) If such record date shall not have been so fixed, then at the close of business on the day next preceding the day on which notice of such meeting shall have been given, or (c) if such record date shall not have been so fixed and if no notice of such meeting shall have been given, then at the time of the call to order of such meeting. Any vote on stock of the Corporation at any meeting of the stockholders may be given by the stockholder of record entitled thereto in person or by proxy appointed by an instrument in writing, subscribed by such stockholder or by the stockholder's attorney thereunto duly authorized and delivered to the secretary of such meeting at or prior to the time designated in the order of business for turning in proxies. At all meetings of the stockholders at which a quorum shall be present, all matters (except where otherwise provided by law, the Certificate of Incorporation or these By-laws) shall be decided by the vote of a majority in voting interest of the stockholders present in person or represented by proxy and entitled to vote thereat. Unless required by law, or determined by the chairman of the meeting to be advisable, the vote on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by the stockholder's proxy as such, if there be such proxy. SECTION 9. List of Stockholders. A list, certified by the Secretary, of the stockholders of the Corporation entitled to vote shall be produced at any meeting of the stockholders upon the request of any stockholder of the Corporation pursuant to the provisions of applicable law, the Certificate of Incorporation or these By-laws. SECTION 10. Inspectors of Election. Prior to the holding of each annual or special meeting of the stockholders, two inspectors of election to serve thereat shall be appointed by the Board, or, if the Board shall not have made such appointment, by the Chairman of the Board. If there shall be a failure to appoint inspectors, or if, at any such meeting, any inspector so appointed shall be absent or shall fail to act or the office shall become vacant, the chairman at the meeting may, and at the request of a stockholder present in person and entitled to vote at such meeting shall, appoint such inspector or inspectors of election, as the case may be, to act thereat. The inspectors of election so appointed to act at any meeting of the stockholders, before entering upon the discharge of their duties, shall be sworn faithfully to execute the duties of inspectors at such meeting, with strict impartiality and according to the best of their ability, and the oath so taken shall be subscribed by them. Such inspectors of election shall take charge of the polls, and, after the voting on any question, shall make a certificate of the results of the vote taken. No director or candidate for the office of director shall act as an inspector of an election of directors. Inspectors need not be stockholders. [June 28, 1994] -4- ARTICLE III BOARD OF DIRECTORS SECTION 1. General Powers. The business and affairs of the Corporation shall be managed by the Board. The Board may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by law, the Certificate of Incorporation or these By-laws, directed or required to be exercised or done by the stockholders. SECTION 2. Number; Qualifications; Election; Term of Office. The number of directors of the Corporation shall be twelve, but the number thereof may be increased to not more than twenty-five, or decreased to not less than nine, by amendment of these By-laws. The directors shall be elected at the annual meeting of the stockholders. At each meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving a plurality of the votes at such election shall be elected. Each director shall hold office until the annual meeting of the stockholders which shall be held next after the election of such director and until a successor shall have been duly elected and qualified, or until death, or until the director shall have resigned as hereinafter provided in Section 10 of this Article III. SECTION 3. Place of Meetings. Meetings of the Board shall be held at such place either within or outside State of New York as may from time to time be fixed by the Board or specified or fixed in the notice of any such meeting. SECTION 4. First Meeting. The Board shall meet for the purpose of organization, the election of officers and the transaction of other business, on the same day the annual meeting of stockholders is held. Notice of such meeting need not be given. Such meeting may be held at any other time or place which shall be specified in a notice thereof given as hereinafter provided in Section 7 of this Article III. SECTION 5. Regular Meetings. Regular meetings of the Board shall be held at times and dates fixed by the Board or at such other times and dates as the Chairman of the Board shall determine and as shall be specified in the notice of such meetings. Notice of regular meetings of the Board need not be given except as otherwise required by law or these By-laws. SECTION 6. Special Meetings. Special meetings of the Board may be called by the Chairman of the Board. SECTION 7. Notice of Meetings. Notice of each special meeting of the Board (and of each regular meeting for which notice shall be required) shall be given by the Secretary as hereinafter provided in this Section 7, in which notice shall be stated the time, place and, if required by law or these By-laws, the purposes of such meeting. Notice of each such meeting shall be mailed, postage prepaid, to each director, by first-class mail, at least four days before the day on which such meeting is to be held, or shall be sent by facsimile transmission or comparable medium, or be delivered personally or by telephone, at least twenty-four hours before the [June 28, 1994] -5- time at which such meeting is to be held. Notice of any such meeting need not be given to any director who shall waive notice thereof as provided in Article IX of these By-laws. Any meeting of the Board shall be a legal meeting without notice thereof having been given, if all the directors of the Corporation then holding office shall be present thereat. SECTION 8. Quorum and Manner of Acting. A majority of the Board shall be present in person at any meeting of the Board in order to constitute a quorum for the transaction of business at such meeting. Participation in a meeting by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other shall constitute presence in person at a meeting. Except as otherwise expressly required by laW or the Certificate of Incorporation and except also as specified in Section 1, Section 5, and Section 6 of Article IV, in Section 3 of Article V and in Article XII of these By-laws, the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board. In the absence of a quorum at any meeting ot the Board, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. The directors shall act only as a Board and the individual directors shall have no power as such. SECTION 9. Organization. At each meeting of the Board, the Chairman of the Board, or in the case of the Chairman's absence therefrom, the President, or in tbe case of the President's absence therefrom, a Vice Chairman, or in the case of the absence of all such persons, another director chosen by a majority of directors present, shall act as chairman of the meeting and preside thereat. The Secretary, or if the Secretary shall be absent from such meeting, any person (who shall be an Assistant Secretary, if any of them shall be present at such meeting) appointed by the chairman, shall act as secretary of the meeting and keep the minutes thereof. SECTION 10. Resignations. Any director of the Corporation may resign at any time by giving written notice of resignation to the Board or the Chairman of the Board or the Secretary. Any such resignation shall take effect at the time specified therein, or if the time when it shall become effective shall not be specified therein, then it shall take effect immediately upon its receipt; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 11. Vacancies. Any vacancy in the Board, whether arising from death, resignation, an increase in the number of directors or any other cause, may be filled by the Board. SECTION 12. Retirement of Directors. The Board may prescribe a retirement policy for directors on or after reaching a certain age, [June 28, 1994] -6- provided, however, that such retirement shall not cut short the annual term for which any director shall have been elected by the stockholders. ARTICLE IV EXECUTIVE AND OTHER COMMITTEES SECTION 1. Executive Committee. The Board, by resolution adopted by a majority of the Board, may designate not less than four of the directors then in office to constitute an Executive Committee, each member of which unless otherwise determined by resolution adopted by a majority of the whole Board, shall continue to be a member of such Committee until the annual meeting of the stockholders which shall be held next after designation as a member of such Committee or until the earlier termination as a director. The Chief Executive Officer shall always be designated as a member of the Executive Committee. The Board may by resolution appoint one member as the Chairman of the Executive Committee who shall preside at all meetings of such Committee. In the absence of said Chairman, the Chief Executive Officer shall preside at all such meetings. In the absence of both the Chairman of the Executive Committee and the Chief Executive Officer, the Chairman of the Board shall preside at all such meetings. In the absence of the Chairman of the Executive Committee and the Chief Executive officer and the Chairman of the Board, the President shall preside at all such meetings. In the absence of all such persons, a majority of the members of the Executive Committee present shall choose a chairman to preside at such meetings. The Secretary, or if the Secretary shall be absent from such meeting, any person (who shall be an Assistant Secretary, if any of them shall be present at such meeting) appointed by the chairman, shall act as secretary of the meeting and keep the minutes thereof. SECTION 2. Powers of the Executive Committee. To the extent permitted by law, the Executive Committee may exercise all the powers of the Board in the management of specified matters where such authority is delegated to it by the Board, and also, to the extent permitted by law, the Executive Committee shall have, and may exercise, all the powers of the Board in the management of the business and affairs of the Corporation (including the power to authorize the seal of the Corporation to be affixed to all papers which may require it; but excluding the power to appoint a member of the Executive Committee) in such manner as the Executive Committee shall deem to be in the best interests of the Corporation and not inconsistent with any prior specific action of the Board. An act of the Executive Committee taken within the scope of its authority shall be an act of the Board. The Executive Committee shall render in the form of minutes a report of its several acts at each regular meeting of the Board and at any other time when so directed by the Board. SECTION 3. Meetings of the Executive Committee. Regular meetings of the Executive Committee shall be held at such times, on such dates and at such places as shall be fixed by resolution adopted by a majority of the [June 28, 1994] -7- Executive Committee, of which regular meetings notice need not be given, or as shall be fixed by the Chairman of the Executive Committee or in the absence of the Chairman of the Executive Committee the Chief Executive Officer and specified in the notice of such meeting. Special meetings of the Executive Committee may be called by the Chairman of the Executive Committee or by the Chief Executive Officer. Notice of each such special meeting of the Executive Committee (and of each regular meeting for which notice shall be required), stating the time and place thereof shall be mailed, postage prepaid, to each member of the Executive Committee, by first-class mail, at least four days before the day on which such meeting is to be held, or shall be sent by facsimile transmission or comparable medium, or be delivered personally or by telephone, at least twenty-four hours before the time at which such meeting is to be held; but notice need not be given to a member of the Executive Committee who shall waive notice thereof as provided in Article IX of these By-laws, and any meeting of the Executive Committee shall be a legal meeting without any notice thereof having been given, if all the members of such Committee shall be present thereat. SECTION 4. Quorum and Manner of Acting of the Executive Committee. Four members of the Executive Committee shall constitute a quorum for the transaction of business, and the act of a majority of the members of the Executive Committee present at a meeting at which a quorum shall be present shall be the act of the Executive Committee. Participating in a meeting by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other shall constitute presence at a meeting of the Executive Committee. The members of the Executive Committee shall act only as a committee and individual members shall have no power as such. SECTION 5. Other Committees. The Board may, by resolution adopted by a majority of the Board, designate members of the Board to constitute other committees, which shall have, and may exercise, such powers as the Board may by resolution delegate to them, and shall in each case consist of such number of directors as the Board may determine; provided, however, that each such committee shall have at least three directors as members thereof. Such a committee may either be constituted for a specified term or may be constituted as a standing committee which does not require annual or periodic reconstitution. A majority of all the members of any such committee may determine its action and its quorum requirements and may fix the time and place of its meetings, unless the Board shall otherwise provide. Participating in a meeting by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other shall constitute presence at a meeting of such other committees. In addition to the foregoing, the Board may, by resolution adopted by a majority of the Board, create a committee of indeterminate membership and duration and not subject to the limitations as to the membership, quorum and manner of meeting and acting prescribed in these By-laws, which committee, in the event of a major disaster or catastrophe or national [June 28, 1994] -8- emergency which renders the Board incapable of action by reason of the death, physical incapacity or inability to meet of some or all of its members, shall have, and may exercise all the powers of the Board in the management of the business and affairs of the Corporation (including, without limitation, the power to authorize the seal of the Corporation to be affixed to all papers which may require it and the power to fill vacancies in the Board). An act of such committee taken within the scope of its authority shall be an act of the Board. SECTION 6. Changes in Committees; Resignations; Removals; Vacancies. The Board shall have power, by resolution adopted by a majority of the Board, at any time to change or remove the members of, to fill vacancies in, and to discharge any committee created pursuant to these By-laws, either with or without cause. Any member of any such committee may resign at any time by giving written notice to the Board or the Chairman of the Board or the Secretary. Such resignation shall take effect upon receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective. Any vacancy in any committee, whether arising from death, resignation, an increase in the number of committee members or any other cause, shall be filled by the Board in the manner prescribed in these By-laws for the original appointment of the members of such committee. ARTICLE V OFFICERS SECTION 1. Number and Qualifications. The officers of the Corporation shall include the Chairman of the Board, the President, one or more Vice Presidents (one or more of whom may be designated as Executive Vice Presidents or as Senior Vice Presidents or by other designations), the Treasurer, the Secretary and the Controller, and may include one or more Assistant Treasurers, one or more Assistant Secretaries, and one or more Assistant Controllers. Such officers shall be elected from time to time by the Board, each to hold office until a successor shall have been duly elected and shall have qualified, or until death, or until resignation as hereinafter provided in Section 2 of this Article V, or until removed as hereinafter provided in Section 3 of this Article V. The officers of the Corporation may include one or more Vice Chairmen of the Board and the Board may from time to time elect such officers. SECTION 2. Resignations. Any officer of the Corporation may resign at any time by giving written notice of resignation to the Board, the Chairman of the Board, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the time specified therein, or, if the time when it shall become effective shall not be specified therein, then it shall become effective upon its receipt; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. [June 28, 1994] -9- SECTION 3. Removal. Any officer of the Corporation may be removed, either with or without cause, at any time, by a resolution adopted by a majority of the Board at any meeting of the Board. SECTION 4. Vacancies. A vacancy in any office, whether arising from death, resignation, removal or any other cause, may be filled for the unexpired portion of the term of office which shall be vacant, in the manner prescribed in these By-laws for the regular election or appointment to such office. SECTION 5. Chairman of the Board. The Chairman of the Board shall, if present, preside at each meeting of the stockholders and of the Board and shall perform such other duties as may from time to time be assigned by the Board. The Chairman may sign certificates representing shares of the stock of the Corporation pursuant to the provisions of Section 1 of Article VII of these By-laws; sign, execute and deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or other instruments authorized by the Board, except in cases where the signing, execution or delivery thereof shall be expressly delegated by the Board or these By-laws to some other officer or agent at the Corporation or where they shall be required by law otherwise to be signed, executed and delivered; and affix the seal of the Corporation to any instrument which shall require it. The Chairman of the Board shall in the absence or incapacity of the President, perform all the duties and functions and exercise all the powers of the President. SECTION 6. Vice Chairman of the Board. Each Vice Chairman of the Board shall assist the Chairman of the Board and have such other duties as may be assigned by the Board or the Chairman of the Board. The Vice Chairman may sign certificates representing shares of the stock of the Corporation pursuant to the provisions of Section 1 of Article VII of these By-laws; sign, execute and deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or other instruments authorized by the Board, except in cases where the signing, execution or delivery thereof shall be expressly delegated by the Board or these By-laws to some officer or agent of the Corporation or where they shall be required by law otherwise to be signed, executed and delivered; and affix the seal of the Corporation to any instrument which shall require it. SECTION 7. President. The President shall perform all such duties as from time to time may be assigned by the Board or the Chairman of the Board. The President may sign certificates representing shares of the stock of the Corporation pursuant to the provisions of Section 1 of Article VII of these By-laws; sign, execute and deliver in the name of the Corporation all deeds mortgages, bonds, contracts or other instruments authorized by the Board, except in cases where the signing, execution or delivery thereof shall be expressly delegated by the Board or these By-laws to some other officer or agent of the Corporation or where they shall be required by law otherwise to be signed, executed and delivered, and affix the seal of the Corporation to any instrument which shall require it; and, in general, perform all duties incident to the office of President. The President shall in the absence or incapacity of the Chairman of the Board, perform all the [June 28, 1994] -10- duties and functions and exercise all the powers of the Chairman of the Board. SECTION 8. Designated Officers. (a) Chief Executive Officer. Either the Chairman of the Board, or the President, as the Board of Directors may designate, shall be the Chief Executive Officer of the Corporation. The officer so designated shall have, in addition to the powers and duties applicable to the office set forth in Section 5 or 7 of this Article V, general and active supervision over the business and affairs of the Corporation and over its several officers, agents, and employees, subject, however, to the control of the Board. The Chief Executive Officer shall see that all orders and resolutions of the Board are carried into effect, be an ex officio member of all committees of the Board (except the Audit Committee and committees specifically empowered to fix or approve the Chief Executive Officer's compensation or to grant or administer bonus, option or other similar plans in which the Chief Executive Officer is eligible to participate), and, in general, shall perform all duties incident to the position of Chief Executive Officer and such other duties as may from time to time be assigned by the Board. (b) Other Designated Officers. The Board of Directors may designate officers to serve as Chief Financial Officer, Chief Accounting Officer and other such designated positions and to fulfill the responsibilities of such designated positions in addition to their duties as officers as set forth in this Article V. SECTION 9. Executive Vice Presidents, Senior Vice Presidents and Vice Presidents. Each Executive and Senior Vice President shall perform all such duties as from time to time may be assigned by the Board or the Chairman of the Board or a Vice Chairman of the Board or the President. Each Vice President shall perform all such duties as from time to time may be assigned by the Board or the Chairman of the Board or a Vice Chairman of the Board or the President or an Executive or a Senior Vice President. Any Vice President may sign certificates representing shares of stock of the Corporation pursuant to the provisions of Section 1 of Article VII of these By-laws. SECTION 10. Treasurer. The treasurer shall: (a) have charge and custody of, and be responsible for, all the funds and securities of the Corporation, and may invest the same in any securities, may open, maintain and close accounts for effecting any and all purchase, sale, investment and lending transactions in securities of any and all kinds for and on behalf of the Corporation or any employee pension or benefit plan fund or other fund established by the Corporation, as may be permitted by law; (b) keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation; [June 28, 1994] -11- (c) deposit all moneys and other valuables to the credit of the Corporation in such depositaries as may be designated by the board or the Executive Committee; (d) receive, and give receipts for, moneys due and payable to the Corporation from any source whatsoever; (e) disburse the funds of the Corporation and supervise the investment of its funds, taking proper vouchers therefor; (f) render to the Board, whenever the Board may require, an account of all transactions as Treasurer; and (g) in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned by the Board or the Chairman of the Board or a Vice Chairman of the Board or the President or an Executive or Senior Vice President. In case one or more Assistant Treasurers shall be elected, the Treasurer may delegate to them the authority to perform such duties as the Treasurer may determine. Section 11. Secretary. The Secretary shall: (a) keep or cause to be kept in one or more books provided for the purpose, the minutes of all meetings of the Board, the Executive Committee and other committees of the Board and the stockholders; (b) see that all notices are duly given in accordance with the provisions of these By-laws and as required by law; (c) be custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal; (d) see that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed; and (e) in general, perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned by the Board or the Chairman of the Board or a Vice Chairman of the Board or the President or an Executive or Senior Vice President. In case one or more Assistant Secretaries shall be elected, the Secretary may delegate to them authority to perform such duties as the Secretary may determine. [June 28, 1994] -12- SECTION 12. Controller. The Controller shall: (a) have control of all the books of account of the Corporation; (b) keep a true and accurate record of all property owned by it, of its debts and of its revenues and expenses; (c) keep all accounting records of the Corporation (other than the accounts of receipts and disbursements and those relating to the deposits of money and other valuables of the Corporation, which shall be kept by the Treasurer); (d) render to the Board, whenever the Board may require, an account of the financial condition of the Corporation; and (e) in general, perform all the duties incident to the office of Controller and such other duties as from time to time may be assigned by the Board or the Chairman of the Board or a Vice Chairman of the Board or the President or an Executive or Senior Vice President. In case one or more Assistant Controllers shall be elected, the Controller may delegate to them authority to perform such duties as the Controller may determine. SECTION 13. Compensation. The compensation of the officers of the Corporation shall be fixed from time to time by the Board; provided, however, that the Board may delegate to a committee the power to fix or approve the compensation of any officers. An officer of the Corporation shall not be prevented from receiving compensation by reason of being also a director of the Corporation; but any such officer who shall also be a director shall not have any vote in the determination of the amount of compensation paid to such officer. ARTICLE VI CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC. SECTION 1. Execution of Contracts. Except as otherwise required by law or these By-laws, any contract or other instrument may be executed and delivered in the name and on behalf of the Corporation by any officer (including any assistant officer) of the Corporation. The Board or the Executive Committee may authorize any agent or employee to execute and deliver any contract or other instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances as the Board or such Committee, as the case may be, may by resolution determine. SECTION 2. Loans. Unless the Board shall otherwise determine, the Chairman of the Board or a Vice Chairman of the Board or the President or any Vice President, acting together with the Treasurer or the Secretary, may effect loans and advances at any time for the Corporation from any [June 28, 1994] -13- bank, trust company or other institution, or from any firm, corporation or individual, and for such loans and advances may make, execute and deliver promissory notes, bonds or other certificates or evidences of indebtedness of the Corporation, but in making such loans or advances no officer or officers shall mortgage, pledge, hypothecate or transfer any securities or other property of the Corporation, except when authorized by resolution adopted by the Board. SECTION 3. Checks, Drafts, etc. All checks, drafts, bills of exchange or other orders for the payment of money out of the funds of the Corporation, and all notes or other evidences of indebtedness of the Corporation, shall be signed in the name and on behalf of the Corporation by such persons and in such manner as shall from time to time be authorized by the Board or the Executive Committee or authorized by the Treasurer or any Assistant Treasurer, acting together with either the General Manager of an operating unit or a nonfinancial Vice President of the Corporation, which authorization may be general or confined to specific instances. SECTION 4. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositaries as the Board or the Executive Committee may from time to time designate or as may be designated by any officer or officers of the Corporation to whom such power of designation may from time to time be delegated by the Board or the Executive Committee. For the purpose of deposit and for the purpose of collection for the account of the Corporation, checks, drafts and other orders for the payment of money which are payable to the order of the Corporation may be endorsed, assigned and delivered by any officer, employee or agent of the Corporation. SECTION 5. General and Special Bank Accounts. The Board or the Executive Committee may from time to time authorize the opening and keeping of general and special bank accounts with such banks, trust companies or other depositaries as the Board or the Executive Committee may designate or as may be designated by any officer or officers of the Corporation to whom such power of designation may from time to time be delegated by the Board or the Executive Committee. The Board or the Executive Committee may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these By-laws, as it may deem expedient. SECTION 6. Indemnification. The Corporation shall, to the fullest extent permitted by applicable law as in effect at any time, indemnify any person made, or threatened to be made, a party to an action or proceeding whether civil or criminal (including an action or proceeding by or in the right of the Corporation or any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, for which any director or officer of the Corporation served in any capacity at the request of the Corporation, by reason of the fact that such person or such person's testator or intestate was a director or officer of the Corporation, or served such other [June 28, 1994] -14- corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein. Such indemnification shall be a contract right and shall include the right to be paid advances of any expenses incurred by such person in connection with such action, suit or proceeding, consistent with the provisions of applicable law in effect at any time. Indemnification shall be deemed to be 'permitted' within the meaning of the first sentence hereof if it is not expressly prohibited by applicable law as in effect at the time. ARTICLE VII SHARES SECTION 1. Stock Certificates. Each owner of stock of the Corporation shall be entitled to have a certificate, in such form as shall be approved by the Board, certifying the number of shares of stock of the Corporation owned. The certificates representing shares of stock shall be signed in the name of the Corporation by the Chairman of the Board or a Vice Chairman of the Board or the President or a Vice President and by the Secretary or an Assistant Secretary and sealed with the seal of the Corporation (which seal may be a facsimile, engraved or printed); provided, however, that where any such certificate is signed by a registrar, other than the Corporation or its employee, the signatures of the Chairman of the Board, a Vice Chairman of the Board, the President, the Secretary, or Assistant Secretary, and transfer agent or a transfer clerk acting on behalf of the Corporation upon such certificates may be facsimiles, engraved or printed. In case any officer, transfer agent or transfer clerk acting on behalf of the Corporation ceases to be such officer, transfer agent, or transfer clerk before such certificates shall be issued, they may nevertheless be issued by the Corporation with the same effect as if they were still such officer, transfer agent or transfer clerk at the date of their issue. SECTION 2. Books of Account and Record of Stockholders. There shall be kept at the office of the Corporation correct books of account of all its business and transactions, minutes of the proceedings of stockholders, Board, and Executive Committee, and a book to be known as the record of stockholders, containing the names and addresses of all persons who are stockholders, the number of shares of stock held, and the date when the stockholder became the owner of record thereof. SECTION 3. Transfers of Stock. Transfers of shares of stock of the Corporation shall be made on the record of stockholders of the Corporation only upon authorization by the registered holder thereof, or by an attorney thereunto authorized by power of attorney duly executed and filed with the Secretary or with a transfer agent or transfer clerk, and on surrender of the certificate or certificates for such shares properly endorsed or accompanied by a duly executed stock transfer power and the payment of all [June 28, 1994] -15- taxes thereon. The person in whose name shares of stock shall stand on the record of stockholders of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. Whenever any transfers of shares shall be made for collateral security and not absolutely and written notice thereof shall be given to the Secretary or to such transfer agent or transfer clerk, such fact shall be stated in the entry of the transfer. SECTION 4. Regulations. The Board may make such additional rules and regulations as it may deem expedient, not inconsistent with these By-laws, concerning the issue, transfer and registration of certificates for shares of stock of the Corporation. It may appoint, or authorize any officer or officers to appoint, one or more transfer agents or one or more transfer clerks and one or more registrars and may require all certificates of stock to bear the signature or signatures of any of them. SECTION 5. Fixing of Record Date. The Board shall fix a time not exceeding fifty nor less than ten days prior to the date then fixed for the holding of any meeting of the stockholders or prior to the last day on which the consent or dissent of the stockholders may be effectively expressed for any purpose without a meeting, as the time as of which the stockholders entitled to notice of and to vote at such meeting or whose consent or dissent is required or may be expressed for any purpose, as the case may be, shall be determined, and all persons who were holders of record of voting stock at such time, and no others, shall be entitled to notice of and to vote at such meeting or to express their consent or dissent, as the case may be. The Board may fix a time not exceeding fifty days preceding the date fixed for the payment of any dividend or the making of any distribution or the allotment of rights to subscribe for securities of the Corporation, or for the delivery of evidences of rights or evidences of interests arising out of any change, conversion or exchange of capital stock or other securities, as the record date for the determination of the stockholders entitled to receive any such dividend, distribution, allotment, rights or interests, and in such case only the stockholders of record at the time so fixed shall be entitled to receive such dividend, distribution, allotment, rights or interests. SECTION 6. Lost, Destroyed or Mutilated Certificates. The holder of any certificate representing shares of stock of the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of such certificate, and the Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it which the owner thereof shall allege to have been lost or destroyed or which shall have been mutilated, and the Corporation may, in its discretion, require such owner or the owner's legal representatives to give to the Corporation a bond in such sum, limited or unlimited, and in such form and with such surety or sureties as the Board in its absolute discretion shall determine, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate, or the issuance of such new certificate. Anything to the contrary notwithstanding, the Corporation, in its absolute discretion, may refuse to [June 28, 1994] -16- issue any such new certificate, except pursuant to legal proceedings under the laws of the State of New York. SECTION 7. Inspection of Records. The record of stockholders and minutes of the proceedings of stockholders shall be available for inspection, within the limits and subject to the conditions and restrictions prescribed by applicable law. SECTION 8. Auditors. The Board shall employ an independent public or certified public accountant or firm of such accountants who shall act as auditors in making examinations of the consolidated financial statements of the Corporation and its subsidiaries in accordance with generally accepted auditing standards. The auditors shall certify that the annual financial statements are prepared in accordance with generally accepted accounting principles, and shall report on such financial statements to the stockholders and directors of the Corporation. The Board's selection of auditors shall be presented for ratification by the stockholders at the annual meeting. Directors and officers, when acting in good faith, may rely upon financial statements of the Corporation represented to them to be correct by the officer of the Corporation having charge of its books of account, or stated in a written report by the auditors fairly to reflect the financial condition of the Corporation. ARTICLE VIII OFFICES SECTION 1. Principal Office. The principal office of the Corporation shall be at such place in the Town of North Castle, County of Westchester and State of New York as the Board shall from time to time determine. SECTION 2. Other Offices. The Corporation may also have an office or offices other than said principal office at such place or places as the Board shall from time to time determine or the business of the Corporation may require. ARTICLE IX WAIVER OF NOTICE Whenever under the provisions of any law of the State of New York, the Certificate of Incorporation or these By-laws or any resolution of the Board or any committee thereof, the Corporation or the Board or any committee thereof is authorized to take any action after notice to the stockholders, directors or members of any such committee, or after the lapse of a prescribed period of time, such action may be taken without notice and without the lapse of any period of time, if, at any time before or after such action shall be completed, such notice or lapse of time shall be waived in writing by the person or persons entitled to said notice or [June 28, 1994] -17- entitled to participate in the action to be taken, or, in the case of a stockholder, by an attorney thereunto authorized. Attendance at a meeting requiring notice by any person or, in the case of a stockholder, by the stockholder's attorney, agent or proxy, shall constitute a waiver of such notice on the part of the person so attending, or by such stockholder, as the case may be. ARTICLE X FISCAL YEAR The fiscal year of the Corporation shall end on the thirty-first day of December in each year. ARTICLE XI SEAL The Seal of the Corporation shall consist of two concentric circles with the IBM logotype appearing in bold face type within the inner circle and the words 'International Business Machines Corporation' appearing within the outer circle. ARTICLE XII AMENDMENTS These By-laws may be amended or repealed or new By-laws may be adopted by the stockholders at any annual or special meeting, if the notice thereof mentions that amendment or repeal or the adoption of new By-laws is one of the purposes of such meeting. These By-laws, subject to the laws of the State of New York, may also be amended or repealed or new By-laws may be adopted by the affirmative vote of a majority of the Board given at any meeting, if the notice thereof mentions that amendment or repeal or the adoption of new By-laws is one of the purposes of such meeting; provided, however, that if any By-law regulating an impending election of directors is adopted or amended or repealed by the Board, there shall be set forth in the notice of the next meeting of the stockholders for the election of directors the By-law so adopted or amended or repealed, together with a concise statement of the changes made. [June 28, 1994] -18- INTERNATIONAL BUSINESS MACHINES CORPORATION I, the undersigned, Secretary of International Business Machines Corporation, do hereby certify that the foregoing is a true and complete copy of the By-laws of said Corporation, including all amendments thereto, and the same is in force at the date hereof. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of said Corporation, this day of 19 . -------------------- Secretary [June 28, 1994] -19- EX-2 3 REPRESENTATIONS AND REGISTRATION RIGHTS AGREEMENT EXHIBIT 2 REPRESENTATIONS AND REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of January 1, 1995 between STRATASYS, INC., a Delaware corporation (the "Company"), and INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation ("IBM"). In connection with the sale on the date hereof by the Company to IBM of 500,000 shares of Common Stock, $.01 par value per share (the "Common Stock"; and such 500,000 shares, the "Shares"), pursuant to the Assignment and Sale of Rapid Prototyping Technology and Related Assets Agreement dated January 1, l995 (the "Technology Agreement"), the Company and IBM hereby agree as follows: 1. Representations and Warranties of the Company. The Company hereby represents and warrants to IBM that: (a) Corporate Organization and Authority. The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; (ii) has the corporate power and authority to own its property and conduct its business where such business is now conducted and to carry on its business as now conducted; and (iii) has been duly qualified and is in good standing to do business as a foreign corporation in each jurisdiction in which the conduct of its business or ownership or leasing of its properties requires qualification, except where failure so to qualify would not have a material adverse effect on the business, properties or condition of the Company. (b) Capitalization. On the date hereof, the authorized capital of the Company consists of (i) 5,000,000 shares of Common Stock, of which 2,871,210 shares are validly issued, outstanding, fully paid and nonassessable, and (ii) 264,000 shares of preferred stock, $.01 par value per share, all of which are issued and outstanding. Except as contemplated by this Agreement and the Technology Agreement and except for 300,000 shares of Common Stock that have been reserved for issuance under the Company's stock plans (of which 146,601 shares are subject to outstanding options) and up to 729,353 shares of Common Stock that has been reserved for issuance upon exercise of warrants and options, there are not outstanding subscriptions, warrants, options, conversion privileges or other rights or agreements to purchase or otherwise acquire or issue any shares of capital stock of the Company (or shares reserved for such 2 purpose), and no preemptive rights or rights of first refusal exist with respect to the issuance of Common Stock. (c) Authorization. All corporate action on the part of the Company necessary for the authorization, execution and delivery of this Agreement and the Technology Agreement by the Company, the performance by the Company of all its obligations under this Agreement and the Technology Agreement and the issuance and delivery by the Company of the Shares has been duly taken, and this Agreement and the Technology Agreement constitute the valid and binding obligations of the Company. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or any other person is required to be obtained or made by the Company in connection with the transactions contemplated hereby. (d) Validity of Shares. When issued, sold and delivered in accordance with the terms and for the consideration expressed in the Technology Agreement, the Shares shall be duly authorized, validly issued, fully paid and nonassessable. (e) Disclosure. The Company's Registration Statement on Form SB-2 (Registration No. 33-83638C), a copy of which has been furnished to IBM and which became effective on October 20, 1994, was true and complete in all material respects as of its effective date and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which there were made, not misleading. (f) Changes in Condition. Since October 20, 1994, no event has occurred respecting the Company except events that both individually and in the aggregate would not have a material adverse effect on the financial condition, results of operations or prospects of the Company. (g) No Defaults, Violations or Conflicts. The Company is not in violation with respect to any term or provision of (i) its certificate of incorporation or by-laws or any indebtedness, mortgage, indenture, contract, agreement, license, permit, judgment, decree or order to which it is a party or (ii) any statue, ordinance, rule or regulation, which violation would have a material adverse 3 effect on the business, properties or condition of the Company. (h) Private Offering. Neither the Company nor anyone acting on its behalf has offered any of the Shares for sale to, or solicited offers to buy any thereof from, or otherwise approached or negotiated with respect thereto with, any prospective purchaser other than IBM. Neither the Company nor anyone acting on its behalf has within the last twelve months issued, sold or offered any security of the Company to any person or organization under circumstances that would cause the issuance and sale of the Shares, as contemplated by this Agreement and the Technology Agreement, to be subject to the registration requirements of the Securities Act of 1933 (the "Securities Act"). The Company agrees that neither the Company nor anyone acting on its behalf will offer the Shares or any part thereof or any similar securities for issuance or sale to, or solicit any offer to acquire any of the same from, anyone so as to make the issuance and sale of the Shares subject to the registration requirements of Section 5 of the Securities Act. (i) Brokers and Finders. The Company has not retained any investment banker, broker or finder in connection with the transactions contemplated by this Agreement and the Technology Agreement. (j) Blue Sky Compliance. The Company shall use its best efforts to comply with all state securities or "Blue Sky" laws necessary to offer and sell the Shares to IBM. 2. Representations and Warranties of IBM. (a) Securities Act. IBM understands and acknowledges that the offering of the Shares pursuant to this Agreement and the Technology Agreement will not be registered under the Securities Act or qualified under any state "Blue Sky" laws on the grounds that the offering and sale of the Shares are exempt from registration and qualification, respectively, under the Securities Act and the state "Blue Sky" laws, and that the Company's reliance upon such exemption is predicated upon IBM's representations set forth in this Agreement. IBM represents and warrants to the Company that IBM is acquiring the Shares for investment only and not with a view to any distribution of all or any portion thereof, and IBM will not offer to sell or otherwise 4 dispose of all or any portion of the Shares in violation of any of the registration requirements of the Securities Act. If, at any time in the future, IBM should offer, sell, assign, pledge, hypothecate, transfer or otherwise dispose of the Shares, it will do so only in accordance with the registration requirements of the Securities Act or pursuant to an exemption therefrom. (b) Accredited Investor. IBM represents and warrants to the Company that IBM is an "accredited investor" as such term is defined in Regulation D under the Securities Act. (c) Conditions on Transfer. IBM covenants that, unless the Shares have been registered pursuant to Section 3 hereof, IBM will not dispose of any Shares unless and until (i) IBM shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the proposed disposition and (ii) IBM shall have furnished the Company with an opinion of counsel (which may be an employee of IBM) reasonably satisfactory in form and substance to the Company and the Company's counsel to the effect that, or shall otherwise have satisfied the Company that, such disposition will not require registration under the Securities Act. (d) Legends for the Shares. IBM acknowledges that the certificate or certificates evidencing the Shares will bear a legend reading substantially as follows: THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS, NOR MAY SUCH SHARES BE SOLD OR TRANSFERRED WITHOUT COMPLIANCE WITH THE AGREEMENT DATED JANUARY 1, 1995. 3. Registration Rights. (a) Demand Registrations. At any time after the third anniversary of the date hereof, if IBM is unable at any time for any reason to dispose of the Shares pursuant to Rule 144(k) under the Securities Act, then upon the written demand of IBM, the Company shall use its best efforts to 5 effect the registration (a "Demand Registration") under the Securities Act of such number of Registration Shares (as defined below) then beneficially owned by IBM as shall be indicated in a written demand sent to the Company by IBM; provided, however, that (i) the Company shall be obligated to effect a total of no more than two Demand Registrations, (ii) a Demand Registration shall not count as such until it has become effective, except that if, after it has become effective, the offering of Registration Shares pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the Securities and Exchange Commission (the "SEC") or any other governmental authority, such registration shall be deemed not to have been effected unless such stop order, injunction or other order or requirement shall subsequently have been vacated or otherwise removed and (iii) a Demand Registration shall not count as such if the Company (or any other stockholder of the Company) offers any of its securities pursuant to the registration in accordance with the next sentence and IBM does not sell in the offering all Registration Shares it requested to register. If a Demand Registration is initiated by IBM and the Company (or any other stockholder of the Company with registration rights) then wishes to offer any of its securities in connection with the registration, no such securities may be offered by the Company or any other stockholder until such time as all Registration Shares registered or to be registered pursuant to IBM's written demand have been sold by IBM. Upon receipt of IBM's written demand, the Company shall expeditiously effect the registration under the Securities Act of the Registration Shares and use its best efforts to have such registration become and remain effective as provided in Section 3(h). IBM shall have the right to select the underwriters for a Demand Registration. As used in this Agreement, "Registration Shares" shall mean the Shares and any shares of Common Stock issued with respect thereto or in substitution therefor, whether by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. (b) Piggyback Registrations. (i) If at any time after the second anniversary of the date hereof, the Company proposes to register any of its securities under the Securities Act for sale for cash (otherwise than in connection with the registration of securities issuable pursuant to an employee stock option, stock purchase or similar plan or pursuant to a merger, exchange offer or 6 transaction of the type specified in Rule 145(a) under the Securities Act), the Company shall give IBM notice of such proposed registration at least 25 days prior to the filing of a registration statement. At the written request of IBM delivered to the Company within 20 days after the receipt of the notice from the Company, which request shall state the number of Registration Shares that IBM wishes to sell or distribute publicly under the registration statement proposed to be filed by the Company, the Company shall use its best efforts to register under the Securities Act such Registration Shares, and to cause such registration (a "Piggyback Registration") to become and remain effective as provided in Section 3(h). (ii) If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters thereof advise the Company in writing that in their opinion the number of securities requested to be included in the registration exceeds the number which can be sold in the offering, the Company shall include in the registration (i) first, the securities the Company proposes to sell and (ii) second, the Registration Shares IBM proposes to sell and the securities each other holder of the Company's securities who has registration rights and has exercised such rights proposes to sell in proportion to the number of shares each proposes to sell pursuant to this clause (ii). (iii) If a Piggyback Registration is a underwritten secondary registration on behalf of holders of the Company's securities who have demand registration rights and the managing underwriters thereof advise the Company in writing that in their opinion the number of securities requested to be included in the registration exceeds the number which can be sold in the offering, the Company shall include in the registration (i) first, the securities of the holders of the Company's securities who have exercised their demand registration rights and (ii) second, the securities any other securityholders of the Company (including any Registration Shares IBM desires to sell) propose to sell in proportion to the number of securities each proposes to sell. In the event the Company desires to participate in such a registration of securities, the Company shall include in the registration (A) first, the securities of the holders of the Company's securities who have exercised their demand registration rights and (B) second, the securities the Company and any other securityholders of the Company propose to sell (including any Registration Shares IBM desires to 7 sell) in proportion to the number of shares each proposes to sell. (c) Indemnification by the Company. In the event of any registration of any Registration Shares under the Securities Act, the Company shall, and hereby does, agree to indemnity and hold harmless IBM, its directors, officers and employees, each other person who participates as an underwriter in the offering or sale of such Registration Shares and each other person, if any, who controls IBM or any such underwriter within the meaning of Section 15 of the Securities Act against (i) any losses, claims, damages or liabilities, joint or several, to which IBM or any such director or officer or underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which the Registration Shares were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which there were made not misleading, (ii) any violation by the Company of the Securities Act or any rule or regulation promulgated under the Securities Act applicable to the Company in connection with any such registration and (iii) any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such losses, claims, liabilities, actions or proceedings which result from the activities set forth in the foregoing clause (i) and (ii); provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by or on behalf of IBM specifically stating that it is for use in the preparation thereof; and provided further, however, that the Company shall not be liable to any person who participates as an underwriter in the offering or sale 8 of Registration Shares or any other person, if any, who controls such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of such person's failure to send or give a copy of the final prospectus, as the same may be then supplemented or amended, to the person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registration Shares to such person if such statement or omission was corrected in such final prospectus. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of IBM or any such director, officer or controlling person and shall survive the transfer of the Registration Shares by IBM. (d) Indemnification by IBM. The Company may require, as a condition to including any Registration Shares in any registration statement filed pursuant to Section 3(a) or 3(b), that the Company shall have received an undertaking satisfactory to it from IBM to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3(c)) the Company, each director of the Company, each officer of the Company signing such registration statement, any underwriter, and each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act with respect to any untrue statement or alleged untrue statement in or omission or alleged omission from such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein or any amendment or supplement thereto, if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information about IBM as a stockholder of the Company furnished to the Company through an instrument duly executed by IBM specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement. Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling person and shall survive the transfer by the seller of the securities of the Company being registered. (e) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim 9 referred to in Section 3(c) or 3(d), such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under Section 3(c) or 3(d) except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist or the indemnified party may have defenses not available to the indemnifying party in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall be liable for any settlement of any action or proceeding effected without its written consent. No indemnifying party shall, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. (f) Other Indemnification. Indemnification similar to that specified in this Section 3 (with appropriate modifications) shall be given by the Company and IBM with respect to any required registration or other qualification of Registration Shares under any Federal or state law or regulation of any governmental authority other than the Securities Act. (g) Indemnification Payments. The indemnification required by this Section 3 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. (h) Registration Covenants of the Company. In the event that any Registration Shares are to be registered 10 pursuant to Section 3(a) or 3(b), the Company covenants and agrees that it shall use its best efforts to effect the registration and cooperate in the sale of the Registration Shares to be registered and shall as expeditiously as possible: (i) (A) prepare and file with the SEC a registration statement with respect to the Registration Shares (as well as any necessary amendments or supplements thereto) (a "Registration Statement") and (B) use its best efforts to cause the Registration Statement to become effective; provided that the Company shall be entitled to deter such filing for a period not to exceed 120 days after receipt of IBM's written demand pursuant to Section 3(a) if (A) the Company is contemplating an underwritten public offering of its securities and, in the judgment of the managing underwriter thereof, such filing would have a material adverse effect on the contemplated offering, (B) the Company is in possession of material information that it deems advisable not to disclose in a registration statement or (C) the Company is prohibited (pursuant to the terms of an underwriting agreement in connection with a public offering of its securities effected within the previous six months) from filing such registration statement prior to the end of such 120-day period; (ii) prior to any filing described above in Section 3(a), furnish to IBM copies of the Registration Statement and any amendments or supplements thereto and any prospectus forming a part thereof proposed to be so filed, which documents shall be subject to the review of counsel for IBM (but not approval of such counsel except with respect to any statement in the Registration Statement which relates to IBM); (iii) notify IBM, promptly after the Company shall receive notice thereof, of the time when the Registration Statement becomes effective or when any amendment or supplement or any prospectus forming a part of the Registration Statement has been filed; (iv) notify IBM promptly of any request by the SEC for the amending or supplementing of the Registration Statement or prospectus or for additional information; 11 (v)(A) advise IBM after the Company shall receive notice or otherwise obtain knowledge of the issuance of any order by the SEC suspending the effectiveness of the Registration Statement or any amendment thereto or of the initiation or threatening of any proceeding for that purpose and (B) promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal promptly if a stop order should be issued; (vi)(A) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus forming a part thereof as may be necessary to keep the Registration Statement effective for the lesser of (x) a period of time necessary to permit IBM to dispose of all its Registration Shares and (y) the maximum period of time permitted by law to keep effective a registration statement without filing an amendment containing new audited financial statements and (B) comply with the provisions of the Securities Act with respect to the disposition of all Registration Shares covered by the Registration Statement during such period in accordance with the intended methods of disposition by IBM set forth in the Registration Statement; (vii) furnish to IBM such number of copies of the Registration Statement, each amendment and supplement thereto, the prospectus included in the Registration Statement (including each preliminary prospectus) and such other documents as IBM may reasonably request in order to facilitate the disposition of the Registration Shares owned by IBM; (viii) use its best efforts to register or qualify such Registration Shares under such other securities or "Blue Sky" laws of such jurisdictions as determined by the underwriters after consultation with the Company and IBM and do any and all other acts and things which may be reasonably necessary or advisable to enable IBM to consummate the disposition in such jurisdictions of the Registration Shares (provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction in which it would not otherwise be required to qualify but for this Section 3(h)(viii), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction); 12 (ix) notify IBM, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the Registration Statement would contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of IBM, prepare a supplement or amendment to the Registration Statement so that the Registration Statement shall not, to the Company's knowledge, contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (x) provide a transfer agent and registrar, which may be a single entity, for all the Registration Shares not later than the effective date of the Registration Statement; (xi) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other action, if any, as IBM or the underwriters shall reasonably request in order to expedite or facilitate the disposition of the Registration Shares pursuant to this Section 3; (xii)(A) make available for inspection by IBM, any underwriter participating in any disposition pursuant to the Registration Statement and any attorney, accountant or other agent retained by IBM or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (B) cause the Company's officers, directors and employees to supply all relevant information reasonably requested by IBM or any such underwriter, attorney, accountant or agent in connection with the Registration Statement; and (xiii) cause the Company's independent public accountants to provide a comfort letter in customary form and covering such matters of the type customarily covered by comfort letters. (i) Expenses. The Company shall pay, on behalf of IBM, all of the expenses in connection with any Demand Registration pursuant to Section 3(a) or Piggyback Registration pursuant to Section 3(b), including all 13 registration, filing and NASD fees, all fees and expenses of complying with securities or "Blue Sky" laws, all word processing, duplicating and printing expenses, all messenger and delivery expenses, the fees and disbursements of counsel for the Company and of its independent public accountants (including the expenses of comfort letters required by or incident to such performance and compliance) and any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding any underwriting discounts and commissions and transfer taxes, if any. In any registration, IBM shall pay for its own underwriting discounts and commissions, if any, and any fees and disbursements of counsel and accountants employed by IBM. (j) Assignment of Registration Rights. IBM may assign its rights under this Section 3 to anyone (other than an affiliate of the Company) to whom IBM sells, transfers or assigns all of its beneficial interest in at least 100,000 Registration Shares (as adjusted for stock splits, stock dividends and stock combinations), other than in sales pursuant to Rule 144 under the Securities Act or a Demand Registration or a Piggyback Registration effected pursuant to this Section 3; provided, however, that no assignment shall increase the Company's obligations to effect registrations or pay expenses thereof. (k) Rule 144. The Company shall take all actions reasonably necessary to enable IBM to sell the Registration Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC, including filing on a timely basis all reports required to be filed by the Securities Exchange Act of 1934. Upon the request of IBM, the Company shall deliver to IBM a written statement as to whether it has complied with such requirements. (l) Contribution. In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which the Company or any holder of Registration Shares exercising its rights under this Section 3 makes a claim for indemnification pursuant to Section 3(c) or 3(d), but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such 14 indemnification may not be enforced in such case notwithstanding that Section 3(c) or 3(d) provides for indemnification in such case, then, the Company and such holder of Registration Shares will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and of the holder of Registration Shares on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations or, it the allocation provided herein is not permitted by applicable law, in such proportion as shall be appropriate to reflect the relative benefits received by the Company and any holder of Registration Shares from the offering of the securities covered by such registration statement. The relative fault of the Company on the one hand and of the holder of Registration Shares on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact related to information supplied by the Company on the one hand or by the holder of Registration Shares on the other; provided, however, that, in any such case, (A) no such holder of Registration Shares will be required to contribute any amount in excess of the proceeds received by such holder of Registration Shares offered by it pursuant to such registration statement; and (B) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation. 4. Right of First Offer (a) Mechanics. Prior to selling or otherwise disposing of any of the Shares, IBM shall first give the Company the opportunity to purchase the Shares (the "Transfer First Offer Right") in the following manner: (i) IBM shall give written notice to the Company of its intent to dispose of the Shares, setting forth the number of Shares to be disposed of (the "Transfer Notice"). (ii) The Transfer Notice shall constitute an offer by IBM to sell all, but not less than all, of the Shares specified in the Transfer Notice to the Company (or a 15 purchaser designated by the Company) at a cash price per Share (the "Transfer Price") equal to the Market Price on the most recent trading date preceding the date of the Transfer Notice. Market Price shall mean the closing sales price for a share of Common Stock on the principal national securities exchange on which the Common Stock is listed, or, if the Common Stock is not listed on any national securities exchange, the closing sales price for a share of Common Stock as reported on the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), or, if such closing price shall not be reported on NASDAQ, the average of the closing bid and asked prices of a share of Common Stock as so reported, or, if such prices shall not be so reported, as the same shall be reported by the National Quotation Bureau Incorporated, or, in all other cases, the value set in good faith by the Company's Board of Directors. (iii) The Transfer First Offer Right shall be exercisable by written notice to IBM (the "Transfer Exercise Notice") within 10 calendar days after receipt of the Transfer Notice. (iv) If the Company exercises the Transfer First Offer Right, then IBM shall sell the Shares specified in the Transfer Notice to the Company (or a purchaser designated by the Company) at the Transfer Exercise Price. The closing of the purchase and sale of the Shares shall take place on such date, no later than 30 days after delivery to the Company of the Transfer Notice, as shall be specified by the Company in the Transfer Exercise Notice. (v) If the Company does not exercise the Transfer First Offer Right, IBM may sell or otherwise dispose of the Shares specified in the Transfer Notice. (b) Exceptions. The Transfer First Offer Right shall not apply to (i) any disposition to the Company or a person or persons approved by the Company; (ii) in a sale pursuant to a Registration Statement in accordance with Section 3; (iii) to a subsidiary of IBM which agrees in writing to comply with the obligations of IBM in this Agreement; (iv) in a merger or consolidation of the Company; or (v) in response to an offer to acquire the Shares which is available to substantially all the holders of Common Stock. 16 5. Miscellaneous. (a) Entire Agreement; Successors and Assigns. This Agreement and the Technology Agreement constitute the entire contract between the parties relative to the subject matter hereof and no party shall be liable or bound to the other in any manner by any warranties, representations or covenants except as specifically set forth herein or therein. Any previous agreement among the parties with respect to the sale of the Shares is superseded by this Agreement. The terms and conditions of this Agreement shall inure to the benefit of the parties. Except as expressly provided in Section 3(j), nothing in this Agreement, expressed or implied, is intended to confer upon any party, other than the parties hereto, any rights, remedies, obligations or liabilities under or by reason of this Agreement. (b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles of such State. (c) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (d) Headings. The headings of the Sections of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement. (e) Notices. Any notice or other communication required or permitted hereunder shall be given in writing and shall be deemed effectively given when delivered by hand, courier or overnight delivery service, five days after deposit if sent by registered or certified mail, return receipt requested, or when received if sent in the form of a telecopy, addressed to a party at its address hereinafter shown or at such other address as such party may designate by ten day's advance written notice to the other party. Any notice to the Company shall be sent to Stratasys, Inc., 14950 Martin Drive, Eden Prairie, Minnesota 55342, telecopy no.: (612) 937-0070, Attention: S. Scott Crump. Any notice to IBM shall be sent to International Business Machines Corporation, Old Orchard Road, Armonk, New York, 10504, telecopy no.: (914) 765-6006, Attention: Donald D. Westfall. 17 (f) Survival of Representations and Warranties. The representations and warranties of the parties contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the issuance, delivery and payment for the Shares. (g) Severability. If any provision of this Agreement or the application of such provision is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable this Agreement in any other jurisdiction. To the extent permitted by applicable law, the parties waive any provision of law that renders any provision of this Agreement invalid, illegal or unenforceable in any respect. The parties shall, to the extent lawful and practicable, use their best reasonable efforts to enter into arrangements to reinstate the intended benefits, net of the intended burdens, of any such provision held invalid, illegal or unenforceable. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. STRATASYS, INC. by /s/ S. Scott Crump ------------------------------ INTERNATIONAL BUSINESS MACHINES CORPORATION, by /s/ Lee A. Dayton ------------------------------- Lee A. Dayton General Manager, Real Estate and Business Development EX-3 4 SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------- SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. ___)* Stratasys, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $.01 Par Value - -------------------------------------------------------------------------------- (Title of Class of Securities) 862685104 - -------------------------------------------------------------------------------- (CUSIP Number) Donald D. Westfall Associate General Counsel Old Orchard Road [1C-65], Armonk, NY 10504 (914) 765-4478 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 1, 1995 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 862685104 Page ______ of ______ Pages - -------------------------------------------------------------------------------- 1 Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person International Business Machines Corporation 13-0871985 - -------------------------------------------------------------------------------- 2 Check the Appropriate Box If a Member of a Group* a. |_| b. |_| - -------------------------------------------------------------------------------- 3 SEC Use Only - -------------------------------------------------------------------------------- 4 Source of Funds* 00 - -------------------------------------------------------------------------------- 5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e) |_| - -------------------------------------------------------------------------------- 6 Citizenship or Place of Organization New York - -------------------------------------------------------------------------------- 7 Sole Voting Power Number of Shares 500,000 shares Beneficially -------------------------------------------------------- Owned By 8 Shared Voting Power Each Reporting Person -------------------------------------------------------- With 9 Sole Dispositive Power 500,000 shares -------------------------------------------------------- 10 Shared Dispositive Power - -------------------------------------------------------------------------------- 11 Aggregate Amount Beneficially Owned by Each Reporting Person 500,000 shares - -------------------------------------------------------------------------------- 12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |_| - -------------------------------------------------------------------------------- 13 Percent of Class Represented By Amount in Row (11) 14.8% - -------------------------------------------------------------------------------- 14 Type of Reporting Person* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! 2 of 7 Item 1. Security and Issuer This statement relates to the common stock, par value $.01 per share (the "Common Stock"), of Stratasys, Inc. (the "Company"), a Delaware corporation with its principal executive offices at 14950 Martin Drive, Eden Prairie, Minnesota 55344. Item 2. Identity and Background International Business Machines Corporation ("IBM") is a New York corporation with its principal office and business at Old Orchard Road, Armonk, New York 10504. IBM develops, manufactures and sells advanced information processing products, including computers and microelectronic technology, software, networking systems and information technology-related services. The attached Schedule I is a list of the directors and executive officers of IBM which contains the following information with respect to each such person: (a) name; (b) business address; (c) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted; and (d) citizenship. 2 During the last five years, neither IBM nor, to the best of IBM's knowledge, any person named in Schedule I has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violations with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration The 500,000 shares of Common Stock issued to IBM by the Company were acquired as partial consideration for IBM entering into the arrangement described in Item 4. Item 4. Purpose of the Transaction The 500,000 shares of Common Stock were issued to IBM in connection with IBM's assignment to the Company of certain rapid prototyping technology developed by the IBM Thomas J. Watson Research Center. The technology assets assigned to the Company include patents and patent applications, copyrights, know-how and related documentation. The Company also acquired from IBM prototypes, components and other tangible personal property 3 and was assigned contract rights. In addition to receiving the shares, IBM was paid $285,284.64 in cash by the Company. The shares were acquired by IBM for investment purposes. IBM does not have any plans or proposals which relate to (a) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company, (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries, (c) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries, (d) any change in the present management of the Company or the present Board of Directors of the Company, (e) any material change in the present capitalization or dividend policy of the Company, (f) any other material change in the Company's business or corporate structure, (g) changes in the Company's charter or by-laws or other actions which may impede the acquisition of control of the Company by any other person, (h) causing a class of securities of the Company to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association, (i) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange 4 Act, or (j) any action similar to any of the foregoing actions. IBM reserves the right, based on its continuing review of its investment in the Company and subject to its obligations described in Item 6, to dispose of any or all of the shares of Common Stock owned by it and otherwise to change its intentions with respect to any or all of the matters referred to in this Item 4. Item 5. Interest in Securities of the Company The only shares of the Company's Common Stock that IBM beneficially owns are the 500,000 shares of Common Stock referred to in Item 4 which shares represent approximately 14.83% of the outstanding Common Stock. IBM possesses the sole power to vote or direct the vote and to dispose of or direct the disposition of all shares of Common Stock beneficially owned by it, subject to its obligations described in Item 6. Except as described above, neither IBM nor, to IBM's knowledge, any person named in Schedule I beneficially owns any shares of Common Stock or has effected any transactions in Common Stock during the past 60 days. 5 Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Company. In connection with the sale of the shares to IBM, the Company and IBM entered into a Representations and Registration Rights Agreement dated as of January 1, 1995 (the "Agreement"), which is annexed hereto as an Exhibit. Pursuant to the Agreement, IBM has certain rights to cause the Company to register such shares for resale under the Securities Act of 1933. IBM's registration rights may be exercised after January 1, 1998, or after January 1, 1997, in connection with a registration otherwise filed by the Company, and such rights are subject to certain conditions and limitations described in the Agreement. The Agreement also provides that prior to selling or otherwise disposing of any of such shares (except (i) pursuant to a registration statement under the Securities Act of 1993, (ii) in the case of a transfer to an IBM subsidiary, (iii) in connection with a merger or consolidation of the Company, (iv) in response to an offer for the Company's common stock which is available to substantially all the holders thereof or (v) to a transferee approved by the Company) IBM is required to give the Company the opportunity to purchase the shares IBM desires to sell at the then current market price. 6 Item 7. Material to be Filed as Exhibits Exhibit I. Representations and Registration Rights Agreement dated as of January 1, 1995, between Stratasys, Inc. and International Business Machines Corporation. [Remainder of page intentionally left blank.] 7 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: January 10, 1995 INTERNATIONAL BUSINESS MACHINES CORPORATION, by /s/ John E. Hickey ----------------------------------- Name: John E. Hickey Title: Vice President, Secretary & Assistant General Counsel SCHEDULE I Each of the persons beside whose name an asterisk appears is a director of IBM. Each of the persons named below is a citizen of the United States of America, except Fritz Gerber (Switzerland), John M. Thompson (Canada) and Lodewijk C. van Wachem (Netherlands). The business address of each person whose principal employment is with IBM is Old Orchard Road, Armonk, New York 10504. Business address and principal Name occupation or employment ---- ------------------------------ Harold Brown* Counselor, Center for Strategic and International Studies, (CSIS), 1800 K Street NW, Suite 400, Washington D.C. 20006 James E. Burke* Retired Chairman of the Board, Johnson & Johnson, One Johnson & Johnson Plaza New Brunswick, NJ 08933. Fritz Gerber* - Chairman and Chief Executive Officer of Roche Switzerland Holding Ltd., Grenzacherstr. 124, CH 4002 Basel, Switzerland. Louis V. Gerstner, Jr.* Chairman of the Board and Chief Executive Officer, IBM Nannerl 0. Keohane* President and Professor of Political Science, Duke University, 207 Allen Building, Box 90001, Durham, NC 27708 Charles F. Knight* Chairman and Chief Executive Officer, Emerson Electric Co., 8000 West Florissant Avenue, P.O. Box 4100, St. Louis, MO 63136 2 J. Richard Munro* Chairman of the Executive Committee, Time Warner Inc., 75 Rockefeller Plaza, New York, NY 10019 Thomas S. Murphy* Chairman of the Board, Capital Cities/ABC, Inc 77 W. 66th Street, New York, NY 10023 John B. Slaughter* President, Occidental College, 1600 Campus Road, Los Angeles, CA 90041 Lodewijk C. van Wachem* - Chairman of the Supervisory Board, Royal Dutch Netherlands Petroleum Company, 30 Carel van Bylandtlasn, 2596 HR, The Hague, Netherlands Dr. Charles N. Vest* President, Massachusetts Institute of Technology, 77 Massachusetts Avenue, Cambridge, MA 02139 Eldgar S. Woolard, Jr.* Chairman and Chief Executive Officer, E.I. du Pont de Nemours and Company, Inc., 1007 Market Street, Wilmington, Delaware 19898 Jerome B. York* Senior Vice President and Chief Financial Officer, IBM J. Thomas Bouchard Senior Vice President, IBM James A. Cannavino Senior Vice President, IBM Nicholas N. Donofrio** Senior Vice President, IBM Donato A. Evangelista Senior Vice President and General Counsel, IBM Ned C. Lautenbach Senior Vice President, IBM John M. Thompson - Canada Senior Vice President, IBM 3 G Richard Thoman Senior Vice President, IBM Patrick A. Toole Senior Vice President, IBM Jeffrey D. Serkes** Vice President and Treasurer Richard F. Wallman Vice President and Controller - ---------- ** Position effective January 31, 1995 EXHIBIT INDEX Page on Which Number Document Exhibit Appears ------ -------- --------------- 1. Evidence of representative's authority to sign on behalf of IBM: Article VI Section 1 and Article V Section 11 of the Bylaws of IBM, as amended through June 28, 1994 2. Representations and Registration Rights Agreement dated as of January 1, 1995 between Stratasys, Inc. and International Business Machines Corporation. -----END PRIVACY-ENHANCED MESSAGE-----